[Federal Register Volume 60, Number 138 (Wednesday, July 19, 1995)]
[Rules and Regulations]
[Pages 37002-37012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17716]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 944
Utah Regulatory Program and Utah Abandoned Mine Land Reclamation
(AMLR) Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with additional requirements, a proposed
amendment to the Utah regulatory program and Utah AMLR plan
(hereinafter referred to as the ``Utah program'' and the ``Utah plan'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
The amendment consists of proposed revisions to the Utah Coal Mining
and Reclamation Act of 1979. The revisions to the Utah program concern
definitions of new terms; rulemaking authority and procedures;
administrative procedures; Division of Oil, Gas and Mining (Division)
action on permit applications; informal conferences; appeals and
further review; release of performance bonds; revegetation standards on
lands eligible for remining; operator requirements for underground coal
mining; contest of violation or amount of penalty; violations of Utah's
program or permit conditions; judicial review of rules and orders;
repeal of specific sections of the Utah Code Annotated 1953; and repeal
dates of certain provisions of the Utah program. The revisions to the
Utah plan concern lands and water eligible for reclamation, recovery of
reclamation costs, and liens against reclaimed lands. The amendment is
intended to revise the Utah program to be consistent with the
[[Page 37003]]
Utah Administrative Procedures Act, and to revise the Utah program and
Utah plan to be consistent with SMCRA, and improve operational
efficiency.
EFFECTIVE DATE: July 19, 1995.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Chief, Denver Field Division, Western Regional
Coordinating Center, Telephone: (303) 672-5524.
SUPPLEMENTARY INFORMATION:
I. Background on the Utah Program and the Utah Plan
On January 21, 1981, and June 3, 1983, the Secretary of the
Interior conditionally approved the Utah program and approved the Utah
plan. General background information on the Utah program and Utah plan,
including the Secretary's findings, the disposition of comments, the
conditions of approval of the Utah program, and approval of the Utah
plan, can be found in the January 21, 1981, and June 3, 1983,
publications of the Federal Register (46 FR 5899 and 48 FR 24876).
Subsequent actions concerning Utah's program and program amendments can
be found at 30 CFR 944.15, 944.16, and 944.30. Subsequent actions
concerning Utah's plan amendments can be found at 30 CFR 944.25.
II. Proposed Amendment
By letter dated April 14, 1994, Utah submitted a proposed amendment
to its program and plan pursuant to SMCRA (administrative record No.
UT-917). The amendment consists of proposed revisions to the Utah Coal
Mining and Reclamation Act of 1979. Utah submitted the proposed
amendment in part to make its program and plan consistent with SMCRA
and in part at its own initiative to make its program consistent with
the Utah Administrative Procedures Act, thereby improving operational
efficiency.
The Utah program provisions of the Utah Coal Mining and Reclamation
Act of 1979 that Utah proposed to revise were: Utah Code Annotated
(UCA) 40-10-2, purpose of Chapter 10; (2) UCA 40-10-3, definitions of
new terms ``adjudicative proceeding,'' ``lands eligible for remining,''
and ``unanticipated event or condition;'' (3) UCA 40-10-6.5, rulemaking
authority and procedure; (4) UCA 40-10-6.7, administrative procedures;
(5) UCA 40-10-7, prohibition of financial interest in any coal mining
operation; (6) UCA 40-10-8, coal exploration rules issued by the
Division and penalty for violation; (7) UCA 40-10-10, permit
applications; (8) UCA 40-10-11, Division action on the permit
application; (9) UCA 40-10-12, revision or modification of permit
provisions; (10) UCA 40-10-13, informal conferences; (11) UCA 40-10-14,
permit approval or disapproval, appeals, and further review; (12) UCA
40-10-15, performance bonds; (13) UCA 40-10-16, release of performance
bond, surety, or deposit; (14) UCA 40-10-17, revegetation standards on
lands eligible for remining; (15) UCA 40-10-18, operator requirements
for underground coal mining; (16) UCA 40-10-19, information provided by
the permittee to the Division and right of entry; (17) UCA 40-10-20,
contest of violation or amount of penalty; (18) UCA 40-10-21, civil
action to compel compliance with Utah's program and other rights not
affected; (19) UCA 40-10-22, violations of Utah's program or permit
conditions; (20) UCA 40-10-24, determination of unsuitability of lands
for surface coal mining; and (21) UCA 40-10-30, judicial review of
rules or orders. Utah also proposed to repeal UCA 40-10-4, ``Mined land
reclamation provisions applied,'' and UCA 40-10-31, ``Chapter's
procedures supersede Title 63, Chapter 46b.'' Finally, Utah proposed to
repeal UCA 40-10-11(5), modification of permit issuance prohibition,
and UCA 40-10-17(2)(t)(ii), revegetation standards on lands eligible
for remining, effective September 30, 2004.
The Utah plan provisions of the Utah Coal Mining and Reclamation
Act of 1979 that Utah proposed to revise were: (1) UCA 40-10-25, lands
and water eligible for reclamation; (2) UCA 40-10-27, entry upon land
adversely affected by past coal mining practices, State acquisition of
land and public sale, and water pollution control and treatment plants;
and (3) UCA 40-10-28, recovery of reclamation costs and liens against
reclaimed land.
OSM announced receipt of the proposed amendment in the May 12,
1994, Federal Register (59 FR 24675), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. UT-926).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on June 13, 1994.
During its review of the amendment, OSM identified concerns
relating to the provisions of the Utah Coal Mining and Reclamation Act
of 1979 at UCA 40-10-3(1), definition of ``adjudicative proceeding;''
UCA 40-10-4, applicability of provisions of UCA 40-8; UCA 40-10-6.7 and
Utah Administrative Rule (Utah Admin. R.) 641-100-100, administrative
procedures; UCA 40-10-11(3) schedule of applicant's mining law
violations; UCA 40-10-11(5), remining operation violations resulting
from unanticipated events or conditions; UCA 40-1013(2)(b), location of
informal conferences; UCA 40-1014(6)(c), appeal to district court and
further review; UCA 40-10-16(6), information conference or formal
hearings concerning performance bond release decisions; UCA 40-10-
18(4), damage resulting from underground coal mining subsidence; UCA
40-10-20(2)(e), contest of a violation or amount of a civil penalty;
UCA 40-10-22(2)(b), cessation order, abatement notice or show cause
order; UCA 40-10-22(3)(e), costs assessed against the permittee or any
person having an interest that is or may be adversely affected by the
notice or order of the Board of Oil, Gas and Mining (Board); and UCA
40-10-28 (1)(b) and (2)(b), recovery of reclamation costs and liens
against reclaimed land. OSM notified Utah of the concerns by letter
dated October 24, 1994 (administrative record No. UT-980).
Utah responded in a letter dated December 7, 1994, by submitting a
revised amendment and additional explanatory information
(administrative record No. UT-997). Utah proposed revisions to its
Rules of Practice and Procedure of the Board at Utah Admin. R. 641-100-
100, administrative procedures. Utah also proposed revisions to and
additional explanatory information for UCA 40-10-14(6), appeal to
district court and further review, UCA 40-10-4, mined land reclamation
provisions applied, UCA 40-10-16(6), formal hearings or informal
conferences, and UCA 40-10-22(2)(b), cessation orders, abatement
notices, or show cause orders.
Based upon the revisions to and additional explanatory information
for the proposed program and plan amendment submitted by Utah, OSM
reopened the public comment period in the December 15, 1994, Federal
Register (59 FR 64636, administrative record No. UT-1002). The public
comment period ended on December 30, 1994.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with additional requirements, that the
proposed program and plan amendment submitted by Utah on April 14,
1994, and as revised by it and supplemented with additional explanatory
information on December 7, 1994, is no less effective than the
corresponding Federal regulations and no less stringent than SMCRA.
Accordingly, the Director approves the proposed amendment.
[[Page 37004]]
1. Nonsubstantive Revisions to Utah's Statutes
Utah proposed revisions to the following previously-approved
statutes that are nonsubstantive in nature and consist of minor
editorial, punctuation, grammatical, and recodification changes
(corresponding SMCRA provisions are listed in parentheses):
UCA 40-10-2 (1) through (6), purpose (section 102 of SMCRA),
UCA 40-10-3 (2) through (7), (9) through (20), and (22),
recodification of definitions for the terms ``alluvial valley
floors,'' ``approximate original contour,'' ``Board,'' ``Division,''
``imminent danger to the health and safety of the public,''
``employee,'' ``operator,'' ``other minerals,'' ``permit,'' ``permit
applicant,'' or ``applicant,'' ``permitting agency,'' ``permit
area,'' ``permittee,'' ``person,'' ``prime farmland,'' ``reclamation
plan,'' ``surface coal mining and reclamation operations,''
``surface coal mining operations,'' and ``unwarranted failure to
comply'' (sections 701 (1), (2), (8), (13) through (21), (28), (29),
and (33) of SMCRA),
UCA 40-10-6.5 (2) and (3) [recodification], rulemaking
procedures (section 505 of SMCRA),
UCA 40-10-7(1), prohibited financial interest in mining
operations (section 201(f) of SMCRA),
UCA 40-10-8 (1) and (3), exploration rules issued by Division
and penalty for violation (section 512 of SMCRA),
UCA 40-10-10(2), submission of application and reclamation plan
(section 507 of SMCRA),
UCA 40-10-11 (1), (2) (a) through (d), (e)(ii), (f) (i) and
(iii); and (4) (a) and (b), Division action on permit application,
requirements for approval, and restoration of prime farmland
(section 510 of SMCRA),
UCA 40-10-12(3), revision or modification of permit provisions
(section 511(c) of SMCRA),
UCA 40-10-14 (2) and (3), notice to the applicant of approval or
disapproval of the application and hearings (section 514 of SMCRA),
UCA 40-10-15(1), performance bonds (section 509(a) of SMCRA),
UCA 40-10-16(1), (3), and (6)(a), release of performance bond,
surety, or deposit; action on application for relief of bond; and
formal hearings or informal conferences (section 519 of SMCRA),
UCA 40-10-17(2)(g); (2)(j) (i)(B) and (ii) (A) and (B); (2)(m);
(2)(o) and (o) (i), (iv), and (v); (2)(p) (i)(F), (ii), and (iii);
(2)(t)(i); (2)(v)(viii); (3)(b) and (b)(ii); (3)(c); (4) (a) and
(d); and (5), performance standards for all coal mining and
reclamation operations, additional standards for steep-slope surface
coal mining, and variances (section 515 of SMCRA),
UCA 40-10-18(1), (2)(i)(i)(B), (2)(j), and (5), underground coal
mining, rules regarding surface effects, operator requirements for
underground coal mining, and applicability of other chapter
provisions (section 516 of SMCRA),
UCA 40-10-19(1) and (2)(a), information provided by the
permittee to the Division and inspections by the Division (sections
(517(b) and (b)(3) of SMCRA),
UCA 40-10-21(1)(a)(i) and (ii), (2)(a)(ii), and (5), civil
action to compel compliance with chapter, jurisdiction, and other
rights not affected (section 520 of SMCRA),
UCA 40-10-22 (1)(c) and (2)(a)(i), violation of chapter or
permit conditions and inspections (section 521 of SMCRA),
UCA 40-10-24(1)(c) (i) (A), (B), (C), and (D), and (ii); (e)
(i), (ii), and (iii); and (2) (a) and (b), determination of
unsuitability of lands for surface coal mining, petitions, and
public hearings (section 522 of SMCRA),
UCA 40-10-25(2) (d) and (e) [recodification] and (3) and (3)(a),
AMLR program, expenditure priorities, and eligible lands and water
(sections 402(g)(4), 403, and 404 of SMCRA), and
UCA 40-10-27 (5)(a) and (12)(b), entry upon land adversely
affected by past coal mining practices and State acquisition of
lands (sections 407(g) and 413 of SMCRA).
Because the proposed revisions to these previously-approved
statutes are nonsubstantive in nature, the Director finds that these
proposed Utah statutes are no less stringent than SMCRA. The Director
approves these proposed statutes.
2. Substantive Revisions to Utah's Statutes That Are Substantively
Identical to the Corresponding Provision of SMCRA
Utah proposed revisions to the following statutes that are
substantive in nature and contain language that is substantively
identical to the requirements of the corresponding SMCRA provisions
(listed in parentheses).
UCA 40-10-3 (8) and (21), definitions for the terms ``lands
eligible for remining'' and ``unanticipated event or condition''
(sections 701 (33) and (34) of SMCRA),
UCA 40-10-11(5) (b), and (c), Division action on permit
application and requirements for approval (section 510(e) of SMCRA),
UCA 40-10-17(2)(t)(ii), performance standards for lands eligible
for remining (section 515(b)(20)(B) of SMCRA),
UCA 40-10-22(1) (d), and (3) (a), (b), (d), and (f), violations
of chapter or permit conditions; cessation orders, abatement
notices, or show cause orders; suspension or revocation of permits;
and reviews (sections 521(a)(4) and 525 (a)(1) and (a)(2) and (d) of
SMCRA), and
UCA 40-10-25(2)(d) [deletion], 3(b), (4), (5), and (6), AMLR
program and eligible lands and water (section 402(g)(4) of SMCRA).
Because these proposed Utah statutes are substantively identical to
the corresponding provisions of SMCRA, the Director finds that they are
no less stringent than SMCRA. The Director approves these proposed
statute provisions.
3. UCA 40-10-3(1), Definition of ``Adjudicative Proceeding''
Utah proposed at UCA 40-10-3(1) a definition for the term
``adjudicative proceeding'' to mean ``a division or board action or
proceeding that determines the legal rights, duties, privileges,
immunities, or other legal interests of one or more identifiable
persons, including all actions to grant, deny, revoke, suspend, modify,
annul, withdraw, or amend an authority, right, permit, or license.''
This definition is similar to the definitions of the same term at
existing UCA 63-46b-2(1)(a) as described at UCA 63-46b-1 of the Utah
Administrative Procedures Act (UAPA) and Utah Admin. R. 641-100-200 of
the Rules of Practice and Procedure of the Board, except that the
proposed definition at UCA 40-10-3(1) does not contain the phrase ``and
judicial review of all such actions.''
The term ``adjudicative proceeding'' is not specifically defined in
the provisions of SMCRA or the Federal regulations at 30 CFR Chapter
VII. Although there is no counterpart definition of ``adjudicative
proceeding'' in SMCRA or the implementing Federal regulations, section
526(e) of SMCRA provides, in part, that ``[a]ction of the State
regulatory authority pursuant to an approved State program shall be
subject to judicial review by a court of competent jurisdiction in
accordance with State law * * *.''
UCA 40-10-30, which is Utah's counterpart to 526(e) of SMCRA,
establishes requirements for judicial review of any ``rule or order of
the Board.'' However, the proposed definition at UCA 40-10-3(1) of
``adjudicative proceeding'' does not reference the judicial review
provision at UCA 40-10-30(1), and by not specifically providing for
``judicial review of all such actions'' in the proposed definition, the
implication is that judicial review is not included in ``adjudicative
proceedings.'' The inconsistency between definitions of the same term
within provisions of the Utah regulatory program and the lack of
consistency between the provisions of UCA 40-10-3(1) and 40-10-30 were
pointed out to Utah by OSM in its October 24, 1994, issue letter (issue
No. 1). In order to be consistent with its own provisions at UCA 40-10-
30(1), which do require judicial review of adjudicative proceedings,
and with its other existing definitions of ``adjudicative proceedings''
at UCA 63-46b-2(1)(a), which is further clarified at UCA 63-46b-1, and
Utah Admin. R. 641-100-200, Utah, in its December 7, 1994, response to
OSM's issue letter,
[[Page 37005]]
stated that it would pursue the inclusion of judicial review in its
definition of ``adjudicative proceeding'' at UCA 40-10-3(1) during its
1996 legislative session.
Therefore, the Director finds that Utah's proposed definition of
``adjudicative proceeding'' at UCA 40-10-3(1), while not inconsistent
with the provisions of SMCRA because there is no Federal counterpart
definition for this term, is inconsistent with the definition of the
same term elsewhere at UCA 63-46b-2(1)(a), as clarified at UCA 63-46b-
1, of the UAPA, and the implementing rules at Utah Admin. R. 641-100-
200. With the requirement that Utah further revise its definition of
``adjudicative proceeding'' at UCA 40-10-3(1) to include judicial
review of agency actions, the Director is approving Utah's proposed
definition of ``adjudicative proceeding'' at UCA 40-10-3(1).
4. Repeal of UCA 40-10-4, Applicability of Provisions of UCA 40-8
Utah proposed to repeal its provisions at UCA 40-10-4, which
concern the applicability of provisions of Title 40, Chapter 8 and its
implementing rules at Utah Admin. R. Part 647 to the State's coal
mining and reclamation operations. UCA 40-8 and Utah Admin. R. Part 647
pertain to the Utah Mined Land Reclamation Act and contain general
reclamation standards for mining, principally for hard rock mining.
There are no Federal SMCRA to either UCA 40-10-4 or 40-8.
The repeal of UCA 40-10-4 would appear to eliminate any
applicability of the provisions of UCA 40-8 and Utah Admin. R. Part 647
to the Utah program. OSM notes, however, that UCA 40-10-6, which is not
proposed for revision in this amendment, also references UCA 40-8. The
language at UCA 40-10-6 provides that the Board and Division have
powers, functions, and duties in addition to those provided in Title
40, Chapter 8, and that employees, agents, and contractors are
authorized by the Board and Division to enter upon any property for the
purpose of carrying out the provisions of Chapter 10 and Chapter 8,
Title 40.
OSM, in its October 24, 1994, issue letter (issue No. 2), asked
Utah to clarify whether the Board and Division derived some or all of
their powers, functions, or duties necessary for the administration of
Utah's coal program from provisions contained in UCA 40-8. Utah stated
in its December 7, 1994, response to this issue that UCA 40-10-4 was
proposed for deletion from the Utah Coal Mining and Reclamation Act in
order to remove ambiguity from Utah's statute to clarify which, if any,
of the UCA 40-8 provisions would apply to the State's coal regulatory
program. Utah clarified further that the reference to UCA 40-8 at UCA
40-10-6 stems from the legislative branch awarding more powers in 1979
to the Board and Division and that such reference is only for
historical purposes. Utah also stated that should there be provisions
of UCA 40-8 or 40-6 which are discovered to apply to coal or which,
when changed, would impact Utah's coal regulatory program, these
provisions would be included in a program amendment.
Based upon the explanation provided by Utah and the State's
assurance that the Board and Division do not derive powers needed to
implement Utah's coal regulatory program from UCA 40-8, the Director
finds that the deletion of the UCA 40-10-4 from the Coal Mining and
Reclamation Act of 1979 is not inconsistent with SMCRA and approves the
deletion of this statutory provision.
5. UCA 40-10-6.5 (1) and (3), Rulemaking Authority and Deletion of
Administrative Procedures
Utah proposed the addition of new language at UCA 40-10-6.5(1) to
provide that ``[t]he board shall promulgate rules under this chapter in
accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking
Act [UARA].'' OSM, in the January 21, 1981, Federal Register (46 FR
5899), approved UARA provisions that were incorporated by Utah into its
program as part of its original program submittal.
Section 503(a)(7) of SMCRA provides, in part, that ``[e]ach state *
* * shall submit to the Secretary, * * * a State program which
demonstrates that such State has the capability of carrying out the
provisions of this Act and meeting its purposes through * * * rules and
regulations consistent with regulations issued by the Secretary
pursuant to this Act.''
The Director finds that the proposed addition at UCA 40-10-6.5(1)
is not inconsistent with section 503(a)(7) of SMCRA and the Director
approves the proposed addition of this statute.
In addition, Utah proposed to delete UCA 40-10-6.5(3) in its
entirety. Existing UCA 40-10-6.5(3) provides that:
[h]earings under this chapter shall be conducted in a manner which
guarantees the parties' due process rights. This includes, but is
not limited to, the right to examine any evidence presented to the
[hearing] committee, the right to cross-examine any witness, and a
prohibition of ex parte communication between any party and a member
of the board.
Utah proposed at UCA 40-10-6.7(2)(b) the addition of similar
provisions to those proposed for deletion (see finding No. 6). The
Director finds that, with the proposed addition of similar language at
UCA 40-10-6.7(2)(b), the deletion of UCA 40-10-6.5(3) is not
inconsistent with SMCRA. The Director approves the deletion of this
statute.
6. UCA 40-10-6.7 and Utah Admin. R. 641-100-100, Administrative
Procedures
Utah proposed new administrative procedures at UCA 40-10-6.7 to
provide:
(1)(a) Informal adjudicative proceedings shall be conducted by
the division under this chapter and shall be referred to as
conferences or informal conferences.
(b) The conduct of conferences shall be governed by rules
adopted by the board which are in accordance with Title 63, Chapter
46b, Administrative Procedures Act [UAPA].
(2)(a)(i) Formal adjudicative proceedings shall be conducted by
the division or board under this chapter and shall be referred to as
hearings or public hearings.
(ii) The conduct of hearings shall be governed by rules adopted
by the board which are in accordance with Title 63, Chapter 46b,
Administrative Procedures Act [UAPA].
(b) Hearings under this chapter shall be conducted in a manner
which guarantees the parties' due process rights. This includes:
(i) the right to examine any evidence presented to the board;
(ii) the right to cross-examine any witness; and
(iii) a prohibition of ex parte communication between any party
and a member of the board.
(c) A verbatim record of each public hearing required by this
chapter shall be made, and a transcript made available on the motion
of any party or by order of the board.
Although not explicitly stated in this provision, the Utah Admin.
R. Parts 645 and 641 rules respectively apply to informal and formal
adjudicative proceedings and provide clear direction on how formal and
informal hearings are to be conducted. There are no specific
counterpart provisions in SMCRA, however, as discussed in finding No. 5
above, Utah's proposed deletion of UCA 40-10-6.5(3) in its entirety and
the addition of the deleted provisions at UCA 40-10-6.7(2)(b) and
(b)(i), (ii), and (iii) provides hearing requirements that are not
inconsistent with SMCRA and its implementing Federal regulations.
Utah, in this amendment, also proposed a revision to its Rules of
Practice and Procedure of the Board at Utah Admin. R. 641-100-100 to
add the phrase ``the Coal Program Rules'' in the
[[Page 37006]]
sentence ``[t]he rules for informal adjudicative proceedings are in the
Coal Program Rules, the Oil and Gas Conservation Rules and the Mineral
Rules.'' OSM previously approved the informal proceeding provisions of
Utah Admin. R. 645 and formal proceeding provisions of Utah Admin. R.
641.
The Director finds that the addition of new administrative
procedures at UCA 40-10-6.7 is not inconsistent with SMCRA. OSM wishes
to clarify that any future rules implemented by Utah in accordance with
UAPA must be revised and determined to be consistent with SMCRA. In
addition, the Director finds that the proposed revision at Utah Admin.
R. 641-100-100 referencing Utah's coal mining rules at Utah Admin. R.
Part 645 is not inconsistent with SMCRA. Therefore, the Director
approves the addition of UCA 40-10-6.7 and the revision of Utah Admin.
R. 641-100-100.
7. UCA 40-10-11(3), Schedule of Applicant's Mining Law Violations and
Pattern of Violations Determination
Utah proposed to revise UCA 40-10-11(3) to provide, in part:
[t]he applicant shall file with his permit application a schedule
listing any and all notices of violations of this chapter, any state
or federal program or law approved under the Surface Mining Control
and Reclamation Act of 1977, 30 U.S.C. Sec. 1201 et seq., and any
law, rule, or regulation of the United States, State of Utah, or any
department or agency in the United States pertaining to air or water
environmental protection incurred by the applicant in connection
with any surface coal mining operation during the three-year period
prior to the date of application. * * * no permit shall be issued to
an applicant after a finding by the board * * * that the applicant,
or the operator specified in the application, controls or has
controlled mining operations with a demonstrated pattern of willful
violations of this chapter of such nature and duration with such
resulting irreparable damage to the environment as to indicate an
intent not to comply with the provisions of this chapter.
Emphasis added. As used by Utah in UCA 40-10-11(3), ``this
chapter'' means UCA Title 40, Chapter 10.
Section 510(c) of SMCRA provides, in part, that (1) the applicant
shall file with the permit application a schedule listing any and all
notices of violations of, among other things, ``this Act;'' and (2) the
permit shall not be issued after a finding that the applicant, or the
operator specified in the application, controls or has controlled
mining operations with a demonstrated pattern of willful violations of
``this Act'' of such nature and duration with such resulting
irreparable damage to the environment as to indicate an intent not to
comply with the provisions of ``this Act.'' The reference to ``this
Act'' in section 510(c) of SMCRA includes SMCRA, the implementing
Federal regulations, and all State and Federal programs approved under
SMCRA. (See 48 FR 44344, 44389, September 28, 1983. See also 53 FR
38868, 38882-38883, October 3, 1988.)
With regard to the first sentence of UCA 40-10-11(3) that requires
that the permit application contain a schedule listing any and all
notices of violations, the provision encompasses violations of all
State and Federal programs approved under SMCRA, but it does not
encompass violations of SMCRA itself or violations of the implementing
Federal regulations. With regard to the portion of UCA 40-10-11(3) that
deals with the pattern of violations, ``this chapter'' encompasses only
violations of the State statute. It does not encompass violations of
SMCRA, the implementing Federal regulations, any State and Federal
programs enacted under SMCRA, or other provisions of the approved Utah
program.
OSM discussed these issues in its October 24, 1994, issue letter to
Utah (issue No. 4). Utah agreed in its December 7, 1994, response to
OSM's issue letter that UCA 40-10-11(3) needed to be revised in
accordance with the deficiencies identified in OSM's issue letter. Utah
stated that it would, in its 1996 legislative session, pursue the
changes to UCA 40-10-11(3).
Based upon the above, the Director, with the requirement that Utah
revise UCA 40-10-11(3) to require that (1) the schedule of the
applicant's mining law violations required in connection with a permit
application includes violations of SMCRA and the implementing Federal
regulations and (2) the pattern of violations determination discussed
therein includes violations of SMCRA, the implementing Federal
regulations, any State or Federal programs enacted under SMCRA, and
other provisions of the approved Utah program, finds UCA 40-10-11(3) to
be no less stringent than section 510(c) of SMCRA. The Director
approves the proposed revisions at UCA 40-10-11(3).
8. UCA 40-10-11(5)(a), Remining Operation Violations Resulting From
Unanticipated Events or Conditions
Proposed UCA 40-10-11(5)(a) provides that the prohibition of UCA
40-10-11(3), which limits the issuance of a permit for violations
(discussed above at finding No. 7), does not apply to a permit
application after October 14, 1992, if the violation resulted from an
unanticipated event or condition that occurred at a surface coal mining
operation on lands eligible for remining under a permit held by the
person making the application. This provision is similar to section
510(e) of SMCRA, except that section 510(e) of SMCRA applies after the
date of enactment of the Energy Policy Act of 1992, which was October
24, 1992. OSM discussed the difference in dates in its October 24,
1994, issue letter to Utah (issue No. 4). Utah stated in its December
7, 1994, response to OSM's issue letter that the October 14 date at UCA
40-10-11(5)(a) is a typographical error and that the correct date
should be October 24.
With the requirement that Utah revise UCA 40-10-11(5)(a) to reflect
an effective date of ``after October 24, 1992,'' the Director finds UCA
40-10-11(5)(a) to be no less stringent than section 510(e) of SMCRA.
The Director approves proposed UCA 40-10-11(5)(a).
9. UCA 40-10-13(2)(b), Location of Informal Conferences
Existing UCA 40-10-13(2)(b) states that, if a person files written
objections on an initially-proposed or revised mine permit application,
the Division shall hold an informal conference within a reasonable time
of the receipt of the objections or request. Utah proposed to revise
this rule to further state, among other things, that:
[t]he conference shall be informal and shall be conducted in
accordance with the procedures described in Subsection (b),
irrespective of the requirements of Section [UCA] 63-46b-5,
Administrative Procedures Act. The conference may be held in the
locality of the coal mining and reclamation operation if requested
within a reasonable time after written objections or the request for
an informal conference are received by the division.
Emphasis added. The procedures described in subsection (b) of UCA
40-10-13(2) are consistent with the procedures for informal conferences
established by section 513(b) of SMCRA, except that SMCRA requires that
the regulatory authority shall hold an informal conference in the
locality of the proposed mining, if requested within a reasonable time
of the receipt of such written objections or the request.
Because Utah did not submit any rationale for this statute, it is
not clear what it intended with the use of the word ``may'' instead of
``shall.'' It is possible that Utah intended, as section 513(b) of
SMCRA requires, that the Division would always hold an informal
conference in the locality of the proposed mining when requested within
a reasonable time after receipt of the objections or request. However,
the use of the word ``may'' in the proposed
[[Page 37007]]
statute would appear to allow Utah discretion to not hold the informal
conference in the locality of the proposed mining even when the
Division receives a request to do so within a reasonable time. The
Director finds that UCA 40-10-13(2)(b), to the extent that the first
sentence of the proposed new language at this statute requires that the
conference be informal and be conducted in accordance with the
procedures for informal conferences, is no less stringent than section
513(b) of SMCRA, and approves this part of the statute. However, to the
extent that the second sentence Utah proposed to add at UCA 40-10-
13(2)(b) allows the Division to possibly not hold the informal
conference in the locality of the coal mining and reclamation operation
when such conference is requested within a reasonable time, the
Director finds UCA 40-10-13(2)(b) is less stringent than section 513(b)
of SMCRA. Utah stated in its December 7, 1994, response to OSM's
October 24, 1994, issue letter (issue No. 6), that it would pursue a
change from the discretionary ``may'' in holding the informal
conference in the locality of the mining operation to a mandatory
``shall'' in its 1995 legislative session.
Therefore, with the requirement that Utah revise UCA 40-10-13(2)(b)
to change the word ``may'' to ``shall'' in the sentence that begins
``[t]he conference may be held in the locality of the coal mining and
reclamation operation * * *,'' the Director finds UCA 40-10-13(2)(b) to
be no less stringent than section 513(b) of SMCRA. The Director
approves the proposed revisions at UCA 40-10-13(2)(b).
10. UCA 40-10-14(6), Appeal to District Court and Further Review
In response to the required amendment at 30 CFR 944.16(b)
(September 27, 1994; 59 FR 49185, 49186; finding No. 3), which required
Utah to alleviate a discrepancy in the requirements addressing the
jurisdiction of the Utah Supreme Court and the State district courts,
and at its own initiative, Utah proposed to revise UCA 40-10-14(6).
Specifically, Utah proposed that:
(a) [a]n applicant or person with an interest which is or may be
adversely affected who has participated in the proceedings [to
determine whether a permit should be issued] as an objector, and who
is aggrieved by the decision of the board, may appeal the decision
of the board directly to the Utah Supreme Court.
(b) [i]f the board fails to act within the time limits specified
in this chapter [UCA Title 40, Chapter 10], the applicant or any
person with an interest which is or may be adversely affected, who
has requested a hearing in accordance with Subsection (3), may bring
an action in the district court for the county in which the proposed
operation is located.
(c) [a]ny party to the action in district court may appeal from
the final judgment, order, or decree of the district court.
(d) [t]ime frames for appeals under Subsections (6) (a) through
(c) shall be consistent with applicable provisions in Section 63-46-
14, Administrative Procedures Act.
(Italics indicate new language proposed to be added to this
statute.) Utah also proposed the deletion of the provision at UCA 40-
10-14(6)(b) that required that ``[r]eview of the adjudication of the
district court is by the [Utah] Supreme Court.''
Section 526(e) of SMCRA provides, in pertinent part, that actions
of the State regulatory authority pursuant to an approved State program
are subject to judicial review by a court of competent jurisdiction in
accordance with State law.
The Director finds that Utah's proposed procedures for further
review and appeal of decisions concerning permit applications at UCA
40-10-14(6) are consistent with and no less stringent than the judicial
review requirements of section 526(e) of SMCRA. Therefore, the Director
approves proposed UCA 40-10-14(6). The Director also notes that the
proposed revisions at UCA 40-10-14(6) satisfy the required amendment at
30 CFR 944.16(b) (59 FR 49185, 49186; September 27, 1994; finding No.
3), which required Utah to amend this statute to eliminate
inconsistencies regarding appellate procedures. Accordingly, the
Director is removing the required amendment at 30 CFR 9434.16(b).
11. UCA 40-10-16(6) (b) through (d), Informal Conferences or Formal
Hearings Pertaining to Performance Bond Release Decisions
Utah proposed to delete its procedural requirements pertaining to
bond release decisions at UCA 40-10-16(6) (b) through (d) and to
replace them with a reference in UCA 40-10-16(6)(d) to the Board's
Rules of Practice and Procedure, which are at Utah Admin. R. Part 641.
Existing UCA 40-10-16(6) is substantively identical to the provisions
of sections 519 (f), (g), and (h) of SMCRA, which provides, in
pertinent part, the requirements for advertising notice of a hearing,
establishing an informal conference to resolve written objections,
gathering evidence, and compiling a verbatim record and making a
transcript available.
The procedural requirements at sections 519 (f), (g), and (h) of
SMCRA are contained in the referenced Rules of Practice and Procedure
of the Board at Utah Admin. R. Part 641. In addition, Utah has
clarified, that for the purposes of UCA 40-10-16(6), all of the
provisions of Utah Admin. R. Part 641 apply to hearings held for the
purpose of bond release.
There is no counterpart provision in SMCRA similar to Utah's
provision at UCA 40-10-16(6)(c) that allows an informal conference to
be converted to a formal proceeding under the standards set forth at
UCA 63-46b-4 of UAPA. OSM requested in its October 24, 1994, issue
letter (issue No. 8) that Utah verify that all procedural requirements
accompanying a formal hearing will occur prior to continuing the
conference as a formal proceeding when an informal conference is
converted to a formal proceeding under UCA 63-46b-4. Utah responded in
its December 7, 1994, letter that when a hearing is converted to a
formal proceeding from an informal proceeding, all of the requirements
of a formal proceeding apply.
Based upon Utah's assurances that the provisions of Utah Admin. R.
Part 641, Rules of Practice and Procedure of the Board, provide for
counterpart requirements to sections 519 (f), (g), and (h) of SMCRA,
apply to bond release hearings, and that, when an informal hearing is
converted to a formal hearing, the requirements of a formal proceeding
apply, the Director finds that the revisions proposed by Utah at UCA
40-10-16(6) are no less stringent than sections 519 (f), (g), and (h)
of SMCRA. The Director approves the revised statute.
12. UCA 40-10-18(4) (a) through (c), Damage Resulting From Underground
Coal Mining Subsidence
Utah proposed new language at UCA 40-10-18(4) (a) through (c) to
provide:
(a) [u]nderground coal mining operations conducted after October
24, 1994, shall be subject to the following requirement: The
permittee shall promptly repair, or compensate for, material damage
resulting from subsidence caused to any occupied residential
dwelling and related structures of noncommercial building due to
underground coal mining operations. Repair of damage will include
rehabilitation, restoration, or replacement of the damaged occupied
residential dwelling and related structures of noncommercial
building. Compensation shall be provided to the owner of the damaged
occupied residential dwelling and related structures or
noncommercial building and will be in the full amount of the
diminution in value resulting from the subsidence. Compensation may
be accomplished by the purchase, prior to mining, of a
noncancellable premium prepaid insurance policy.
[[Page 37008]]
(b) [n]othing in Subsection (4) shall be construed to prohibit
or interrupt underground coal mining operations.
(c) [w]ithin one year after the date of enactment of Subsection
(4), the board shall adopt final rules to implement Subsection (4).
The proposed language at UCA 40-10-18(4)(a) is substantively
identical to the language provided at section 720(a)(1) of SMCRA, which
requires repair or compensation for material damage to certain
structures resulting from subsidence due to underground coal mining.
Therefore, the Director finds that UCA 40-10-18(4)(a) is no less
stringent than SMCRA and approves the statute.
The proposed language at UCA 40-10-18(4)(b) is identical to the
last sentence of section 720(a)(2) of SMCRA, which provides that
``[n]othing in this section shall be construed to prohibit or interrupt
underground coal mining operations.'' This proposed language is
consistent with section 720(a)(2) of SMCRA and the Director approves
it. However, UCA 40-10-18(4)(b) lacks a counterpart provision to the
first sentence of section 720(a)(2), which requires the prompt
replacement of any drinking, domestic, or residential water supply from
a well or spring in existence prior to the application for a surface
coal mining and reclamation permit, which has been affected by
contamination, diminution, or interruption resulting from underground
coal mining operations. As stated in the March 31, 1995, Federal
Register final rule (60 FR 16722, 16745), if the Director determines
that certain State program provisions should be amended in order to be
made no less effective that the revised Federal rules, the individual
States will be notified in accordance with the provisions of 30 CFR
732.17. For Utah, this may mean that a 30 CFR part 732 issue letter may
be written if a determination is made that Utah's program is less
effective than the Federal rules concerning the protection of water
supplies affected by underground coal mining operations.
The proposed language at UCA 40-10-18(4)(c) is Utah's counterpart
provisions to section 720(b) of SMCRA, which requires the promulgation,
after providing notice and an opportunity for public comment, of final
regulations to implement the subsidence provisions of section 720 of
SMCRA. The Director finds that UCA 40-10-18(4)(c) is no less stringent
than section 720(b) of SMCRA and approves it.
13. UCA 40-10-20(2)(e)(ii), Contest of Violation or Amount of Civil
Penalty
In response to the Director's previous finding that UCA 40-10-20(3)
was less stringent than section 518(c) of SMCRA, and the Director's
deferred decision on this statutory provision (September 27, 1994; 59
FR 49185, 49187; finding No. 5), Utah proposed to create UCA 40-10-
20(2)(e)(ii) to require that, if the operator charged with a violation
fails to forward the amount of the penalty to the Division within 30
days of receipt of the results of an informal conference, the operator
waives any opportunity ``for further review of the violation or to
contest the violation.''
Section 518(c) of SMCRA provides, in part, that failure of the
operator to forward the amount of the penalty to the Secretary of the
Interior within 30 days shall result in a waiver of all legal rights to
contest the violation or the amount of the penalty. Utah's proposed
phrase ``for further review of the violation or to contest the
violation'' addresses an operator's waiver of the right to contest the
fact of the violation, but does not address an operator's waiver of the
right to contest the amount of the civil penalty.
The Director finds UCA 40-10-22(2)(e)(ii) to be less stringent than
section 518(c) of SMCRA to the extent that it does not preclude an
operator from contesting the amount of the penalty when the operator
does not forward the amount of the civil penalty to the Division within
30 days of the operator's receipt of the results of the informal
conference. Utah stated in its December 7, 1994, response to OSM's
October 24, 1994, issue letter (issue No. 10) that it would pursue
clarification in its 1996 legislative session of what is waived when an
operator fails to forward the amount of the penalty to the Division.
Therefore, with the requirement that Utah revise UCA 40-10-
20(2)(e)(ii) to provide for a waiver of the operator's right to contest
the amount of the civil penalty when the operator fails to forward the
amount of the penalty to the regulatory authority within 30 days of
receipt of the results of the informal conference, the Director finds
UCA 40-10-20(2)(e)(ii) to be no less stringent than section 518(c) of
SMCRA. The Director approves the proposed statute.
14. UCA 40-10-22(2)(b), Cessation Orders, Abatement Notices, and Show
Cause Orders
Utah proposed at UCA 40-10-22(2)(b), among other things, that any
relief granted by a State district court to enforce an order pursuant
to UCA 40-10-22(2)(a)(i) shall continue in effect until the completion
or final termination of all proceedings for review of such order,
unless prior to completion or termination, the Utah Supreme Court on
review grants a stay of enforcement or sets aside or modifies the
Board's order that is being appealed.
Section 521(c) of SMCRA provides that, under similar circumstances,
any relief granted by the Federal district court shall continue in
effect until completion or final termination of all proceedings for
review of such order, unless prior thereto, the district court granting
such relief sets it aside or modifies it. Section 521(d) of SMCRA
requires that an approved State program contain the same or similar
procedural requirements relating to the enforcement provisions of
section 521 of SMCRA.
OSM requested in its October 24, 1994, issue letter that Utah
clarify whether the provisions of UCA 40-10-22(2)(b) allow the State
district court to set aside or modify its own relief as section 521(d)
of SMCRA does (issue No. 11). Utah stated in its December 7, 1994,
response to OSM's issue letter that State law provides for the Utah
Supreme Court to be the authority for modifying or setting aside a
Board order or decision, and that, to the extent that any judicial body
can reconsider its own order or decision, the State district court can
also modify or set aside its own order or decision.
Based upon Utah's explanation of its rationale for the proposed
revisions at UCA 40-10-22(2)(b), the Director finds that this provision
is consistent with the provisions of section 521(c) of SMCRA. The
Director approves the proposed revisions to UCA 40-10-22(2)(b).
15. UCA 40-10-22(3)(e), Costs Assessed Against Either Party Adversely
Affected by the Board's Notice or Order
Utah proposed to revise UCA 40-10-22(3)(e) to provide:
[w]henever an order is entered under this section or as a result
of any adjudicative proceeding under this chapter, at the request of
any person, a sum equal to the aggregate amount of all costs and
expenses (including attorney fees) as determined by the board to
have been reasonably incurred by that person in connection with his
participation in the proceedings, including any judicial review of
agency actions, may be assessed against either party as the court,
resulting from judicial review, or the board, resulting from
adjudicative proceedings, deems proper.
UCA 40-10-22(3)(e) is similar to section 525(e) of SMCRA, except
Utah is proposing to change the term ``administrative proceedings'' to
``adjudicative proceedings.'' This
[[Page 37009]]
change is consistent with the addition of a definition for the term
``adjudicative proceeding'' proposed by Utah in this amendment at UCA
40-10-3(1). As discussed in finding No. 3, the definition of
``adjudicative proceeding'' as proposed by Utah at UCA 40-10-3(1) does
not encompass judicial review.
Use of the term ``adjudicative proceeding'' in UCA 40-10-22(3)(e)
allows Utah to limit the reimbursement of costs and expenses incurred
through participation in the proceedings to only proceedings which are
adjudicatory in nature. Section 525(e) of SMCRA provides for the award
of costs and expenses incurred in connection with ``any administrative
proceeding.'' Prior to Utah's adoption of the amendment under
consideration in this rulemaking, UCA 40-10-22(3)(e) contained similar
language.
Both the Interior Board of Land Appeals (IBLA) and the U.S.
District Court for the Utah District declined to delineate the full
reach of the phrase ``any administrative proceeding'' in section 525(e)
of SMCRA when presented with an opportunity to do so. Natural Resources
Defense Council, Inc. (NRDC), et al. v. Office of Surface Mining
Reclamation and Enforcement (OSM) et al., 107 IBLA 339, 365 n. 12
(1989); Utah International, Inc. v. Department of the Interior, 643 F.
Supp. 819, 825 n. 25 (D. Utah 1986). However, in deciding these cases,
both IBLA and the U.S. District Court held that this phrase should not
be read literally, but rather must be interpreted in the context of the
legislative history of SMCRA and case law concerning attorney fee and
expense awards under other statutes. Both opinions contain extensive
dicta suggesting that the phrase could or should be read to include
only administrative proceedings of an adjudicatory nature, not
proceedings that are part of the fact-finding process culminating in an
initial agency decision, e.g., informal conferences on permit
applications. NRDC, supra, at 354-360; Utah International, supra, at
820-825.
Furthermore, the Federal regulations at 43 CFR 4.1290 and 4.1291,
which implement this section of SMCRA in part, provide for an award of
costs and expenses only in connection with administrative proceedings
resulting in the issuance of a final order by an administrative law
judge or IBLA. The preamble to these regulations notes that the
Secretary rejected comments requesting the scope of the rules be
expanded to allow the award of costs and expenses in other types of
administrative proceedings, such as rulemaking (4 CFR 34385, August 3,
1978).
Therefore, the Director finds the Utah statutory provision at UCA
40-10-22(3)(e) that allows for award of costs and expenses in
connection with an adjudicatory proceeding is not inconsistent with
section 525(e) of SMCRA and its implementing regulations, as
interpreted by case law. The Director approves the proposed revisions
to this sttatute.
The Director's approval is based upon OSM's interpretation that the
term ``adjudicatory proceedings,'' as used at UCA 40-10-22(3)(e)
includes all classes of actions in which participants would be eligible
for an award of costs and expenses under 43 CFR 4.1290 through 4.1295.
The Director notes that, as more case law develops, it may be necessary
in the future to further expand the provisions at UCA 40-10-22(3)(e) to
include other types of administrative proceedings. In that event, OSM
would notify Utah in accordance with 30 CFR Part 732.
16. UCA 40-10-28 (1)(a)(ii) and (2)(a), Recovery of Reclamation Costs
and Liens Against Reclaimed Lands
In response to the Director's previous finding that UCA 40-10-
28(1)(a)(ii) and 40-10-28(2)(a) were not consistent with sections
407(e) and 408(a) of SMCRA and the Director's deferred decision on
these statutory provisions (September 27, 1994; 59 FR 49185, 49187-88;
finding Nos. 7 and 9), Utah proposed to add new language to its
provisions at UCA 40-10-28(1)(a)(ii) and UCA 40-10-28(2)(a).
Utah proposed at UCA 40-10-28(1)(a)(ii) to require that the sale
price of land that is sold to the State or local government for public
purposes may not be less than the actual ``cost of the purchase of the
property by the State plus the'' costs of reclaiming the land. This
requirement is analogous to and no less stringent than the counterpart
Federal provision at section 407(e) of SMCRA, which provides that the
sale price of land sold to the State or local government for public
purposes may in no case be less than the cost of purchase and
reclamation of such land.
Utah also proposed the addition of a new provision at UCA 40-10-
28(2)(a) to provide, in addition to other criteria, that a lien will be
placed against reclaimed land except where the surface owner ``owned
the land prior to May 2, 1977.'' This specific requirement is analogous
to and no less stringent than the requirement of section 408(a) of
SMCRA, which provides, in part, that no lien shall be filed against the
property of any person who owned the land prior to May 2, 1977.
As discussed above, the revisions proposed by Utah in this
amendment at UCA 40-10-28(1)(a)(ii) and 40-10-28(2)(a) are consistent
with sections 407(e) and 408(a) of SMCRA. Therefore, the Director
approves the proposed revisions to these statutes.
17. UCA 40-10-30, Judicial Review of Orders or Rules
Utah proposed new provisions at UCA 40-10-30 to provide, in part:
(1) [j]udicial review of adjudicative proceedings under this
chapter is governed by Title 63, Chapter 46b, Administrative
Procedures Act, and provisions of this chapter consistent with the
Administrative Procedures Act.
(2) [j]udicial review of the board's rulemaking procedures and
rules adopted under this chapter is governed by Title 63, Chapter
46a, Utah Administrative Rulemaking Act.
(3) [a]n appeal from an order of the board shall be directly to
the Utah Supreme Court and is not a trial de novo. * * *
(4) [a]n action or appeal involving an order of the board shall
be determined as expeditiously as feasible and in accordance with
Subsection 78-2-2(3)(e)(iv). The Utah Supreme Court shall determine
the issues on both questions of law and fact and shall affirm or set
aside the rule or order, enjoin or stay the effective date of agency
action, or remand the cause to the board for further proceedings. *
* *
(5) [i]f the board fails to perform any act or duty under this
chapter which is not discretionary, the aggrieved person may bring
an action in the district court of the county in which the operation
or proposed operation is located.
(Italics indicate new language proposed to be added to this statute.)
Utah also proposed to delete the requirement at existing UCA 40-10-
30(3) that ``[r]eview of the adjudication of the district court is by
the Supreme Court.''
The proposed revisions at UCA 40-10-30 are consistent with the
requirements of the counterpart Federal provisions of section 526 of
SMCRA. Therefore, the Director finds that the proposed revisions at UCA
40-10-30 are no less stringent than section 526 of SMCRA and approves
them.
IV. Summary and Disposition of Comments
Following are summaries of all substantive oral and written
comments on the proposed amendment that were received by OSM, and OSM's
response to them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
[[Page 37010]]
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Utah program and Utah AMLR plan.
In a telephone conversation on May 11, 1994, the Bureau of Mines
stated that it had no comments on the proposed amendment
(administrative record No. UT-922).
The U.S. Army Corps of Engineers responded in a letter dated May
23, 1994, that it found the proposed changes to be satisfactory
(administrative record No. UT-930).
In a letter dated May 18, 1995, the Mine Safety and Health
Administration stated that its personnel had reviewed the proposed
amendment for possible conflicts with MSHA regulations and that no
conflicts between the two were found (administrative record No. UT-
1056).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Utah proposed to make in its amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. UT-919). It
responded on May 9, 1994, that it believed that the proposed amendment
would have no impact on water quality standards promulgated under the
authority of the Clean Water Act, as amended (33 U.S.C. 1251 et seq.).
4. State Historic Preservation Officer (SHPO)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO (administrative record Nos. UT-919).
The SHPO did not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with additional
requirements, Utah's proposed amendment as submitted on April 14, 1994,
and as revised and supplemented with additional explanatory information
on December 7, 1994.
The Director approves the following sections of the proposed
amendment, as discussed in: finding No. 1, UCA 40-10-2 (1) through (6),
concerning purpose; UCA 40-10-3 (2) through (7), (9) through (20), and
(22) [recodification], concerning the definitions of certain terms; UCA
40-10-6.5 (2) and (3) [recodification], concerning rulemaking
procedures; UCA 40-10-7(1), concerning prohibited financial interest in
mining operations; UCA 40-10-8 (1) and (3), concerning exploration
rules issued by the Division and penalties for violations; UCA 40-10-
10(2), concerning submission of the application and reclamation plan;
UCA 40-10-11 (1), (2)(a) through (d), (e)(ii), (f) (i) and (iii), and
(4) (a) and (b), concerning Division action on the permit application,
requirements for approval, and restoration of prime farmland; UCA 40-
10-12(3), concerning revision or modification of permit provisions; UCA
40-10-14 (2) and (3), concerning notice to the applicant of approval or
disapproval of the application and hearings; UCA 40-10-15(1),
concerning performance bonds; UCA 40-10-16 (1), (3), and (6)(a),
concerning release of the performance bond, surety, or deposit, action
on the application for relief of bond, and formal hearings or informal
conferences; UCA 40-10-17 (2)(g), (2)(j) (i)(B) and (ii) (A) and (B),
(2)(m), (2) (o) and (o)(i), (iv), and (v), (2)(p)(i)(F), (ii), and
(iii), (2)(t)(i), (2)(v)(viii), (3)(b) and (b)(ii), (3)(c), (4) (a) and
(d), and (5), concerning performance standards for all coal mining and
reclamation operations, additional standards for steep-slope surface
coal mining, and variances; UCA 40-10-18 (1), (2)(i)(i)(B), (2)(j), and
(5), concerning underground coal mining, rules regarding surface
effects, operator requirements for underground coal mining, and
applicability of other chapter provisions; UCA 40-10-19 (1) and (2)(a),
concerning information provided by the permittee to the Division and
inspections by the Division; UCA 40-10-21(1)(a) (i) and (ii), and
(2)(a)(ii), and (5), concerning civil action to compel compliance with
chapter, jurisdiction, and other rights not affected; UCA 40-10-22
(1)(c) and (2)(a)(i), concerning violation of chapter or permit
conditions and inspections; UCA 40-10-24(1)(c)(i) (A), (B), (C), and
(D), and (ii), (e) (i), (ii), and (iii), and (2) (a) and (b),
concerning determination of unsuitability of lands for surface coal
mining, petitions, and public hearings; UCA 40-10-25(2) (d) and (e)
[recodification] and (3) and (3)(a), concerning abandoned mine
reclamation program, expenditure priorities, and eligible lands and
water; and UCA 40-10-27(5)(a) and (12)(b), concerning entry upon land
adversely affected by past coal mining practices and State acquisition
of lands; finding No. 2, UCA 40-10-3 (8) and (21), concerning
definitions for the terms ``lands eligible for remining'' and
``unanticipated event or condition;'' UCA 40-10-11(5) (b), and (c),
concerning Division action on permit application and requirements for
approval; UCA 40-10-17(2)(t)(ii), concerning performance standards for
lands eligible for remining; UCA 40-10-22 (1)(d) and (3) (a), (b), (d)
and (f), concerning violations of chapter or permit conditions,
cessation orders, abatement notices, or show cause orders, suspension
or revocation of permits, and reviews,; and UCA 40-10-25(2)(d)
[deletion], 3(b), (4), (5), and (6), concerning abandoned mine
reclamation program, eligible lands and water; finding No. 4, UCA 40-
10-4, concerning repeal of the applicability of provisions of UCA 40-8;
finding No. 5, UCA 40-10-6.5 (1) and (3), concerning rulemaking
authority and deletion of administrative procedures; finding No. 6, UCA
UCA 40-10-6.7 and Utah Admin. R. 641-100-100, concerning administrative
procedures; finding No. 10, UCA 40-10-14(6), concerning appeal to
district court and further review; finding No. 11, UCA 40-10-16(6) (b)
through (d), concerning informal conferences or formal hearings
pertaining to performance bond release decisions; finding No. 12, UCA
40-10-18(4), concerning damage resulting from underground coal mining
subsidence; finding No. 15, UCA 40-10-22(2)(b), concerning cessation
orders, abatement notices, and show cause orders; finding No. 15, UCA
40-10-22(3)(e), concerning costs assessed against either party
adversely affected by the Board's notice or order; finding No. 16, UCA
40-10-28(1)(a)(ii) and (2)(a), concerning recovery of reclamation costs
and liens against reclaimed lands; and finding No. 17, UCA 40-10-30,
concerning judicial review of rules or orders.
With the requirement that Utah further revise its statutes, the
Director approves, as discussed in: finding No. 3, UCA 40-10-3(1),
concerning the definition of ``adjudicative proceeding;'' finding No.
7, UCA 40-10-11(3), concerning the schedule of an applicant's mining
law violations and pattern of violations determination; finding No. 8,
UCA 40-10-11(5)(a), concerning remining operation violations resulting
from unanticipated events or conditions; finding No. 9, UCA 40-10-
13(2)(b), concerning the
[[Page 37011]]
location of informal conferences; and finding No. 13, UCA 40-10-
20(2)(e)(ii), concerning contest of the violation or the amount of the
civil penalty.
The Director approves the statutes and rule as proposed by Utah
with the provision that they be fully promulgated in identical form to
the statutes and rule submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 944, codifying decisions
concerning the Utah program and Utah plan, are being amended to
implement this decision. This final rule is being made effective
immediately to expedite the State program and plan amendment process
and to encourage States to bring their programs into conformity with
the Federal standards without undue delay. Consistency of State and
Federal standards is required by SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments or AMLR plans and revisions thereof since each such
program or plan is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met. Decisions on proposed State AMLR plans
and revisions thereof submitted by a State are based on a determination
of whether the submittal meets the requirements of Title IV of SMCRA
(30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR
Parts 884 and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)).
No environmental impact statement is required for this rule since
agency decisions on proposed State AMLR plans and revisions thereof are
categorically excluded from compliance with the National Environmental
Policy Act (42 U.S.C. 4332) by the Manual of the Department of the
Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
established by SMCRA or previously promulgated by OSM will be
implemented by the State. In making the determination as to whether
this rule would have a significant economic impact, the Department
relied upon the data and assumptions for the counterpart Federal
regulations.
List of Subjects in 30 CFR Part 944
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 13, 1995.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 944--UTAH
1. The authority citation for Part 944 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 944.15 is amended by adding paragraph (ff) to read as
follows;
Sec. 944.15 Approval of amendments to State regulatory program.
* * * * *
(ff) The revisions to or additions of the following sections of the
Utah Code Annotated 1953 (UCA), Title 40, and the Utah Administrative
Rules (Utah Admin. R.) for Coal Mining, as submitted to OSM on April
14, 1994, and as revised and supplemented with explanatory information
on December 7, 1994, are approved effective July 19, 1995.
UCA 40-10-2 (1) through (6)........ Purpose.
40-10-3(1)......................... Definition of ``Adjudicative
Proceeding.''
40-10-3 (2) through (7), (9) Recodification of Definitions.
through (20), and (22).
40-10-3 (8) and (21)............... Definitions of ``Lands Eligible for
Remining'' and ``Unanticipated
Event or Condition.''
40-10-4............................ Repeal of the Applicability
Provisions of 40-8.
40-10-6.5(1)....................... Rulemaking Authority.
40-10-6.5 (2) and (3).............. Recodification of Rulemaking
Procedures.
40-10-6.5(3)....................... Deletion of Administrative
Procedures.
40-10-6.7.......................... Administrative Procedures.
40-10-7(1)......................... Prohibited Financial Interests in
Mining Operations.
40-10-8 (1) and (3)................ Exploration Rules Issued by
Division and Penalty for
Violations.
40-10-10(2)........................ Submission of Applications and
Reclamation Plans.
40-10-11 (1), (2)(a) through (d), Division of Oil, Gas and Mining
(e)(ii), (f) (i) and (iii), and (Division) Action on Permit
(4) (a) and (b). Applications, Requirements for
Approval, and Restoration of Prime
Farmland.
40-10-11(3)........................ Schedule of Applicant's Mining Law
Violations and Pattern of
Violations Determination.
[[Page 37012]]
40-10-11(5)(a)..................... Remining Operation Violations
Resulting From Unanticipated
Events or Conditions.
40-10-(5) (b) and (c).............. Division Action on Permit
Applications and Requirements for
Approval.
40-10-12(3)........................ Revisions or Modifications of
Permit Provisions.
40-10-13(2)(b)..................... Location of Informal Conferences.
40-10-14 (2) and (3)............... Notice to Applicant of Approval or
Disapproval of Application and
Hearings.
40-10-14(6)........................ Appeals to District Court and
Further Review.
40-10-15(1)........................ Performance Bonds.
40-10-16 (1), (3), and (6)(a)...... Release of the Performance Bond,
Surety, or Deposit, Action on
Application for Relief of Bond,
and Formal Hearings or Informal
Conferences.
40-10-16(6) (b) through (d)........ Information Conferences or Formal
Hearings Pertaining to Performance
Bond Release Decisions.
40-10-17(2) (g), (2)(j)(i) (B) and Performance Standards for All Coal
(ii)(A) and (B), (2)(m), (2) (o), Mining and Reclamation Operations,
and (o)(i), (iv), and (v), (2)(p) Additional Standards for Steep-
(i)(F), (ii), and (iii), Slope Surface Coal Mining, and
(2)(t)(i), (2) (v)(viii), (3) (b) Variances.
and (b)(ii), (3)(c), (4) (a) and
(d), and (5).
40-10-17(2)(t)(ii)................. Performance Standards for All Coal
Mining and Reclamation Operations.
40-10-18 (1), (2)(i)(i)(B), (2)(j), Underground Coal Mining, Rules
and (5). Regarding Surface Effects,
Operator Requirements for
Underground Coal Mining, and
Applicability of Other Chapter
Provisions.
40-10-18(4) (a) through (c)........ Damage Resulting From Underground
Coal Mining Subsidence.
40-10-19 (1) and (2)(a)............ Information Provided by Permittee
to Division and Inspections by
Division.
40-10-20(2)(e)(ii)................. Contest of the Violation or the
Amount of the Civil Penalty.
40-10-21 (1)(a) (i) and (ii), Civil Action to Compel Compliance
(2)(a)(ii), and (5). with Chapter, Jurisdiction, and
Other Rights Not Affected.
40-10-22 (1)(c) and (2)(a)(i)...... Violations of Chapter or Permit
Conditions and Inspections.
40-10-22 (1)(d) and (3) (a), (b), Violations of Chapter or Permit
(d), and (f). Conditions, Cessation Orders,
Abatement Notices, or Show Cause
Orders, and Suspensions or
Revocations of Permit.
40-10-22(2)(b)..................... Cessation Orders, Abatement
Notices, and Show Cause Orders.
40-10-22(3)(e)..................... Costs Assessed Against Either
Party.
40-10-24(1)(c)(i) (A), (B), (C), Determination of Unsuitability of
and (D), and (ii), (e) (i), (ii), Lands for Surface Coal Mining,
and (iii), and (2) (a) and (b). Petitions, and Public Hearings.
40-10-30........................... Judicial Review of Rules or Orders.
Utah Admin. R. 641-100-100......... Administrative Procedures.
3. Section 944.16 is amended by removing and reserving paragraph
(b) and adding paragraphs (e) through (i) to read as follows:
Sec. 944.16 Required program amendments.
* * * * *
(e) By March 1, 1996, Utah shall revise its definition of
``adjudicative proceeding'' at UCA 40-10-3(1) to include judicial
review of agency actions.
(f) By March 1, 1996, Utah shall revise UCA 40-10-11(3) to require
that (1) the schedule of the applicant's mining law violations required
in connection with a permit application includes violations of SMCRA
and the implementing Federal regulations and (2) the pattern of
violations determination discussed therein includes violations of
SMCRA, the implementing Federal regulations, any State or Federal
programs enacted under SMCRA, and other provisions of the approved Utah
program.
(g) By March 1, 1996, Utah shall revise UCA 40-10-11(5)(a) to
reflect an effective date of ``after October 24, 1992.''
(h) By March 1, 1996, Utah shall revise UCA 40-10-13(2)(b) to
change the word ``may'' to ``shall'' in the sentence that begins
``[t]he conference may be held in the locality of the coal mining and
reclamation operation * * *.''
(i) By March 1, 1996, Utah shall revise UCA 40-10-20(2)(e)(ii) to
provide for a waiver of the operator's right to contest the amount of
the civil penalty when the operator fails to forward the amount of the
penalty to the regulatory authority within 30 days of receipt of the
results of the informal conference.
4. Section 944.25 is amended by adding paragraph (c) to read as
follows:
Sec. 944.25 Approval of amendments to State abandoned mine plan.
* * * * *
(c) The following sections of the Utah Code Annotated 1953 (UCA),
Title 40, pertaining to the Utah abandoned mine plan, as submitted to
OSM on April 14, 1994, and revised on December 7, 1994, are approved
effective July 19, 1995.
40-10-25(2)(d), Deletion of Research and Demonstration Projects.
40-10-25(2) (d) and (e), Recodification of Expenditure Priorities.
40-10-25 (3), (3)(a), (3)(b), (4), (5), and (6), Eligible Lands and
Water.
40-10-27 (5)(a) and (12)(b), Entry Upon Land Adversely Affected by Past
Coal Mining Practices and State Acquisition of Lands.
40-10-28 (1)(a)(ii) and (2)(a), Recovery of Reclamation Costs and Liens
Against Reclaimed Lands.
[FR Doc. 95-17716 Filed 7-18-95; 8:45 am]
BILLING CODE 4310-05-M
